When you can’t manage your own affairs
The Protection of Personal
and Property Rights Act 1988
Billie
• Billie, 81, lives with her husband Rawiri.
• Two years ago Billie began having short-term
memory losses. In the last six months her
condition has developed into advanced dementia
– sometimes she thinks she is back in earlier
stages of her life, when she and Rawiri were
raising their three sons.
• Unable to care for Billie on their own anymore, Rawiri and his sons are
making plans to have Billie enter residential care in a rest home.
• Billie’s family and her GP all agree that Billie has become incapable of
making and understanding decisions for herself.
• Who has the legal right to make decisions on Billie’s behalf?
What we’ll cover today:
The Protection of Personal Property Rights Act
1. Enduring Powers of Attorney (EPAs)
– Court orders – personal and property
– Government Review of the legislation
2. The Crimes Act – duty of care; abuse
3. Some tips
“An Act to provide for
The “3PR” Act
the protection and promotion of
The Protection of Personal
the personal and property rights
and Property Rights Act 1988
of persons who are not fully able to
manage their own affairs”
What is “capacity”?
You lose your “capacity” if –
• you can no longer make your own
decisions and understand their
consequences, or
• you can no longer communicate
your decisions to other people
How does the 3PR Act help?
• Lets you plan ahead by making an
“ enduring power of attorney” (EPA)
• Allows the Family Court to make orders or
appoint decision-makers for you, if no EPA
What is an enduring power of attorney?
• A legal document saying who you’d like
to make decisions for you
• You can only make an EPA while you
still have capacity
• EPA usually only takes effect if you lose your
capacity
EPAs: Who’s who?
The “donor”
•
That’s you, the person who gives the
enduring power of attorney
The “attorney”
•
That’s the person you give the power to
Two kinds of EPA
EPA for property
•
Decisions about your money and property
(like your house, car and bank accounts)
•
You can decide when it takes effect
EPA for personal care and welfare
•
Decisions about your personal care
(like where you live and how you’ll be cared for)
•
Can take effect only if you lose capacity
How to make an EPA
Research and discuss with family and friends
Seek legal advice
A special form
•
Signed by you, the attorney and witnesses
•
Your witness must be lawyer, legal exec,
or trustee corporation officer
Your witness must
•
be independent of the attorney
•
explain effect of EPA to you, and
•
sign a certificate
Restrictions on your attorney’s powers
• No important decisions without medical
certificate
• Must always act in your best interests
• Must consult with you and encourage you to
act on your own behalf
• Must consult with and give information to
people you’ve named
• Must keep records of all financial
transactions
Optional provisions for your EPA
• People your attorney must consult with
• People your attorney must give information
to
• Who will assess your mental capacity
• Whether to allow property attorney to benefit
him / herself
• Appointing a successor attorney(or two)
• Allowing property attorney to make will if
Family Court agrees
Using an EPA
• If someone says they are the attorney:
– Ask to see the EPA
– Ask to see the medical certificate or
Family Court order
– Get legal advice if you’re unsure
• If you are worried about an attorney’s
decisions, the Family Court can get involved
Intervention by Family Court
Family Court can be asked to:
• decide whether you’ve lost mental capacity
• decide the validity and effect of your EPA
• review a decision made by your attorney
• give directions to your attorney
• cancel your attorney’s appointment
Who can ask the Court to intervene?
•
You, the donor
•
•
Another of your
attorneys
The manager of your hospital,
rest home or other institution
•
An elder abuse and neglect
prevention service
(eg, Age Concern)
•
Anyone with the Court’s
permission
•
A relative
•
A doctor
•
A social worker
•
A trustee corporation
•
Your welfare guardian
Suspension of EPA
• Donor can suspend attorney’s
power after recovering mental
capacity
• This doesn’t revoke the EPA
• Attorney can’t then act under EPA
without a new medical certificate
When and how does an EPA end?
• If you, the donor, die
• If you the donor revoke the EPA while
mentally capable
• If the attorney –
• dies
• loses mentally capacity, or
• becomes bankrupt
• If the attorney disclaims the role
• If the Family Court cancels the attorney’s
appointment
Government review of EPA law
Government is seeking feedback on EPAs
Current law working well
Any problems
Suggestions for improvements
Surveys on line: DUE end of June 2013
http://www.msd.govt.nz/about-msd-and-our-work/whatshappening/2013/enduring-powers-of-attorney-review.html
Orders under the 3PR Act
Personal care and welfare
Family Court can –
•
make specific “personal orders”
•
appoint a welfare guardian for you
Property
Family Court can –
•
make “personal orders” for small amounts
•
appoint a property manager for you
“Personal orders” (specific orders)
• Not merely because you’re making
unwise decisions
• Can include treatment orders
• Only certain people can ask for an
order to be made
• Person who the order is about can
challenge the request for an order
Who can apply for a personal order?
• Relatives, such as spouse / partner,
or children or parents
• a doctor
• a social worker
• the person in charge of any hospital
or home that you’re in
• you yourself
Challenging a personal order
• You’ll usually get a copy of the
application
• You can attend the Court hearing, and
bring witnesses
• You can have a lawyer represent you
• Legal aid is available if you can’t afford
one
• Court will appoint and pay for a lawyer
if you don’t have one
Welfare guardians
• A person appointed to make decisions about
your personal care and welfare
• Must act in your best interests and consult you
• Can make decisions including treatment
decisions
• But cannot make certain decisions
(e.g. adoption, ECT, medical trials, refusing
treatment)
• Can have their decisions challenged in Court
Property managers
• Can rent your house, run your business,
pay your bills …
• Can be appointed by a Family Court
“Property Order”
AND NOTE
• You can choose to have a Trustee
Corporation manage your property at
your request
• It costs. Possibly a lot.
How you can challenge or have a say on
the Court’s decision
• Go to the hearing to oppose a property
manager being appointed for you
• Tell the Court who you’d like it to appoint
• Ask the Court to review an appointment
after it’s made
• Ask the Court to review particular
decisions your property manager has
made
Crimes Act:
Elder abuse
Crimes Act 1961
– s151: added “duty to protect”
– s195: now includes “vulnerable adult”
– s195A: new offence “failing to protect”
– Key definition “vulnerable adult”
Crimes Act 1961
Who may have a legal duty to
protect a vulnerable adult?
Anyone who has ‘actual care
and charge’ of a vulnerable
adult.
Crimes Act 1961
Do you have to report abuse?
How do you report abuse?
A few Tips
1. Review your personal
situation every few years and
make changes to EPA if
necessary
2. Superannuation
- make sure you apply before
you turn 65
3. Retirement villages
- Get advice before you sign
- Code of Practice is legally
binding and contains
complaints process
QUESTIONS?
Come and chat with me